Fulbright v. Biltort
| Decision Date | 27 August 2018 |
| Docket Number | CASE NO. 18-3213-SAC |
| Parties | Randall Allen FULBRIGHT, Plaintiff, v. (FNU) BILTORT, et al., Defendants. |
| Court | U.S. District Court — District of Kansas |
Randall Allen Fulbright, Topeka, KS, pro se.
Mr. Fulbright, a pre-trial detainee confined in the Shawnee County Jail, filed a pro se civil rights complaint pursuant to 42 U.S.C. § 1983. Plaintiff's complaint includes few details but seems to allege constitutional defects with Mr. Fulbright's 2014 Kansas conviction for sexual battery1 , along with defamation in connection with his arrest. As relief, Plaintiff requests removal from registration as a sex offender under the Kansas Offender Registration Act (KORA), K.S.A. 22-4901, et seq., as well as monetary damages.
I. Background
On May 29, 2014, Mr. Fulbright pled nolo contendre to a violation of K.S.A. 21-5505(a), sexual battery, pursuant to a plea agreement. He was sentenced to 8 months incarceration. As a result of his conviction, he was required to register as a sex offender pursuant to the Kansas Offender Registration Act ("KORA"). K.S.A. 22-4902(b)(5). Under K.S.A. 21-4906(a)(1)(A), Plaintiff is required to register for 15 years from the date of his release from confinement. The KORA online registry site gives an "end of registration" date of December 19, 2029. Plaintiff completed his incarceration, then apparently failed to register for some period of time after his release. Kansas court records show that Mr. Fulbright has been charged with a violation of K.S.A. 22.4903(c)(1)(A), for failing to register and remains in custody awaiting trial. See online records for Shawnee County District Court, Case No. 2017-CR-000320 and Case No. 2017-CR-001194.2
Plaintiff filed this complaint on August 15, 2018, and has filed ten (10) other actions against various defendants with essentially the same allegations.
Plaintiff baldly asserts that his rights under the Second and Fourteenth Amendments were violated in connection with his 2014 conviction. He alleges ineffective assistance of counsel. ECF Doc. 1, at 5. He also claims the officer who arrested him in 2014 defamed his character. Id. at 2. Mr. Fulbright names as defendants the arresting officer and an official of the Shawnee County Jail. He states he is seeking " ‘possible forensic, monetary, and punitive reward with removal from (K.O.R.A.) registration with defective conviction.’ " Id. at 5.
Mr. Fulbright filed this action as a § 1983 civil rights complaint. However, because the complaint challenges his 2014 state criminal conviction and requests removal from KORA registration, that portion of the complaint is properly considered as a petition for writ of habeas corpus.3 See Preiser v. Rodriguez , 411 U.S. 475, 489, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) ; U.S. v. Furman , 112 F.3d 435, 438-39 (10th Cir. 1997), cert. denied, 513 U.S. 1050, 115 S.Ct. 651, 130 L.Ed.2d 555 (1994).
The Court has a duty to summarily dismiss a petition for habeas corpus "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rules Governing § 2254 Cases, Rule 4, 28 U.S.C.A. foll. § 2254. Having examined Mr. Fulbright's petition, the Court finds that this action is subject to dismissal because Plaintiff is no longer in custody pursuant to the challenged conviction, therefore depriving this Court of jurisdiction to consider his claim. Furthermore, Plaintiff has not exhausted the remedies available to him in state court and filed this action outside the period of limitations.
Section 2254(a) provides that "a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). A petitioner seeking habeas relief must be in custody under the challenged conviction or sentence at the time the application is filed. Maleng v. Cook , 490 U.S. 488, 490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Habeas relief is generally not available when a petitioner seeks to challenge a prior conviction for which he is no longer "in custody." See Lackawanna Cnty. Dist. Att'y v. Coss , 532 U.S. 394, 401, 121 S.Ct. 1567, 149 L.Ed.2d 608 (2001). Mr. Fulbright has completed his 8-month sentence for the 2014 conviction that he challenges here and is no longer incarcerated under that conviction.
However, Mr. Fulbright might argue that he remains "in custody" pursuant to the 2014 conviction because he is subject to the registration requirement and other restrictions imposed by KORA until 2029 as a result of that conviction. A petitioner may be found to be "in custody" for purposes of the habeas corpus act in situations where the petitioner is not physically incarcerated. The custody requirement can be met where there is a severe restraint on a person's liberty imposed because of the individual's criminal conviction. Hensley v. Mun. Court , 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973). Hence, courts have found petitioners to be "in custody" when they are on parole or probation, or even released on their own recognizance pending execution of sentence, due to the significant restraints on liberty. See id. ; Jones v. Cunningham , 371 U.S. 236, 242-43, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) ; Olson v. Hart , 965 F.2d 940, 942-43 (10th Cir. 1992). In contrast, collateral consequences of a conviction, such as inability to vote or obtain certain licenses, are not sufficient to meet the custody requirement for a writ of habeas corpus. See Maleng , 490 U.S. at 492, 109 S.Ct. 1923 ; Williamson v. Gregoire , 151 F.3d 1180, 1183 (9th Cir. 1998).
While Mr. Fulbright does not specifically make the argument, other similarly situated petitioners have argued that an offender registry requirement is a sufficient restraint on an individual's liberty to qualify as being "in custody." This argument has been uniformly rejected by the federal circuit courts, including the Tenth Circuit, even in the face of differing state registration act requirements. See Calhoun v. Att'y General of Colorado , 745 F.3d 1070, 1074 (10th Cir. 2014) (Colorado registration statute); Virsnieks v. Smith , 521 F.3d 707, 720 (7th Cir. 2008) (Wisconsin registration statute); Wilson v. Flaherty , 689 F.3d 332, 335, 338-39 (4th Cir. 2012) (); Leslie v. Randle, 296 F.3d 518, 522-23 (6th Cir. 2002) (Ohio registration statute); McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (Oregon statute); Henry v. Lungren, 164 F.3d 1240, 1241-42 (9th Cir. 1999) (California statute); Williamson , 151 F.3d at 1183-84 (Washington statute).
In Calhoun , the Tenth Circuit considered whether the ongoing registry obligation under Colorado's sex offender registry law satisfied the custody requirement for habeas relief. Mr. Calhoun pled guilty to unlawful sexual contact in 2002 and was sentenced to two years of probation and required to register. His probation was terminated in 2007, and he filed a § 2254 petition challenging his conviction in 2012. Calhoun , 745 F.3d at 1072.
The court found that Mr. Calhoun had completed his sentence, and there were no conditions of his sentence that could subject him to reincarceration or that placed another restraint on his liberty. He was "free to live, work, travel, and engage in all legal activities without limitation and without approval by a government official." Id. at 1074. As a result, the court concluded that the Colorado sex offender registration requirements are "collateral consequences of conviction that do not impose a severe restriction on an individual's freedom." Id. The Tenth Circuit held that "the requirement to register under state sex-offender registration statutes does not satisfy § 2254's condition that the petitioner be ‘in custody’ at the time he files a habeas petition." Id.
The requirements under KORA do not differ materially from those of the Colorado act considered in Calhoun . Under KORA, Mr. Fulbright must register within three business days of coming into any county where he resides, works or attends school. He must report in person to the local registry agency four times a year. He has to provide identifying and contact information and be photographed and fingerprinted. K.S.A. 22-4905. He is included on a public website maintained by the Kansas Bureau of Investigation. However, as in Calhoun , Mr. Fulbright is "free to live, work, travel, and engage in all legal activities without limitation and without approval by a government official." See Calhoun , 745 F.3d at 1074. Moreover, the Kansas Supreme Court recently found that even a lifetime registration requirement under KORA is not punishment under the federal or Kansas constitution. State v. Petersen-Beard , 304 Kan. 192, 377 P.3d 1127, 1131 (2016). "Although the ‘in custody’ requirement may be satisfied by restraints other than criminal punishment, ... the [Kansas] Supreme Court's conclusion that [KORA] is a form of civil regulation provides additional support for our conclusion that the classification, registration, and community notification provisions are more analogous to collateral consequences such as the loss of the right to vote than to severe restraints on freedom of movement such as parole." Leslie , 296 F.3d at 523 (internal quotation marks and citation omitted). Therefore, the Court finds that merely being subject to the KORA registration requirement is a collateral consequence of Mr. Fulbright's 2014 conviction and does not cause him to be "in custody" for habeas purposes.
However, that does not end the inquiry. The question raised by Mr. Fulbright's situation is whether the fact that he is in actual, physical custody for an alleged violation of a registration act causes him to be "in...
To continue reading
Request your trial